Merrill v. Preston

• Decision Date: 08 September 1883
• Citation: 135 Mass. 451
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Thomas W. Merrill v. Sarah S. Preston & others

135 Mass. 451

Thomas W. Merrill v. Sarah S. Preston & others

Supreme Court of Massachusetts

September 8, 1883

[Syllabus Material]

Suffolk. Bill in equity, filed June 22, 1882, by a trustee to obtain the instructions of this court, and alleging the following facts:

On February 22, 1877, Sarah S. Preston and Horatio W. Preston her son, executed in this Commonwealth, where they were then domiciled, an instrument, by which they conveyed certain personal property to the plaintiff, in trust to pay over the net income which might arise from two ninth parts of said property, semiannually, to Alonzo F. Preston and John A. Preston each, during his life, and at his decease to divide one of said two ninth parts among his children, and the other ninth part, or, in case there should be no children then living, both said ninth parts, one third thereof to said Sarah S. Preston, "and the other two thirds thereof to said Horatio W. Preston, if then living. but if then deceased, to his heirs at law."

The instrument gave the following powers to the trustee: "And in trust, if said trustee shall deem it expedient, to sell the whole or any part of the property which may at any time be held by him in his capacity as trustee as aforesaid, and to change any investments so held by him, then to sell by public auction or private sale, for such considerations or on such terms as he shall from time to time deem expedient, any such estate, property or investment, and to make, execute, acknowledge and deliver suitable conveyances and sufficient transfers of said property, and to loan and invest the net proceeds thereof in such real estate, real estate mortgages, United States bonds, or scrip shares of stock of any corporation, or in such other property or securities as said trustee shall in his discretion select. And to take conveyances of the property in which the same shall be invested to himself, to be held upon the same trusts, to the same uses, for the same purposes, and with the same powers, as the property so sold was held under this instrument, or otherwise dispose of said net proceeds, or any part thereof, according to its provisions; and in trust to retain, during the pleasure of the trustee, any portion or portions of said trust property invested as the same now is; and in trust to hold said trust property in common and undivided, until such time or times as it shall be necessary to divide the same in order to carry out and fulfil the respective requirements herein contained, and in conveying, transferring and paying over shares or portions of said trust property, as hereinbefore provided or required, in trust to appraise and set apart in such manner as said trustee may deem just, and to convey, transfer and deliver to the persons entitled thereto, according to the foregoing provisions, so much of said trust property, real, personal or either, as said trustee may judge equal in value to such share or portion; or if said trustee shall deem it expedient to sell and convey sufficient of said trust property to enable him to pay in money what he may deem to be the just value of such share or portion, and in making the divisions, apportionments and conveyances of said trust property, as hereinbefore required, to divide, apportion or convey to the person or persons entitled thereto his, her or their portions in any such funds, property or estate as said trustee shall elect, and at such valuation as said trustee may deem just, said trustee not to be held responsible for his decisions or doings in or concerning the same, nor for any loss which may happen or arise therefrom."

Horatio W. Preston died in 1878, domiciled in Maryland, leaving no issue, but leaving a mother, said Sarah S. Preston, several uncles and aunts, descendants of his paternal grandfather, and a widow, to whom he devised "all the residue of my property, this not to conflict with her rights of dower, should there be children born to us, then the child or children to share alike with my wife as residuary legatee." A statute of Maryland, in force at the death of Horatio, provides that "Every devise of land, or any estate therein, or bequest of personal estate, to the wife of the testator, shall be construed to be intended in bar of her dower in lands or share of the personal estate respectively, unless it be otherwise expressed in the will." Maryland Code of 1878, art. 50, § 227. Under the will of Horatio, his widow has received personal property to the value of more than $ 400,000. She has since married one Frank Brown. John A. Preston died in 1881, leaving two children, who have received from the trustee one of said two ninths; and one third of the other ninth part has been paid to Sarah S. Preston.

The property in question, which came from the husband of Sarah S. Preston and the father of Horatio W. Preston, has always consisted of personal property.

Under the laws of the State of Maryland, at the time of the death of Horatio, real estate descended as follows:

If the estate descended on the part of the father, and the intestate left no issue, and no father nor brother nor sister of the blood of the father, and no descendant from them, and no grandfather on the part of the father, the estate descended to "the descendants of such grandfather and their descendants, in equal degree equally.'

If in the descending or collateral line any father or mother may be dead, the child or children of such father or mother shall by representation be considered in the same degree as the father or mother would have been if living, and shall have the same share of the estate as the father or mother, if living, would have been entitled to, and no more; and in such case, when there are more children than one, the share aforesaid shall be equally divided among such children, provided that there be no representation admitted among collaterals after brothers' and sisters' children.

"If the estate descended to the intestate on the part of the mother, and the intestate shall die without any child or descendant, then the estate shall go to the mother."

If the estate shall be vested in the intestate by purchase, or shall descend to or vest in the intestate in any other manner than as hereinbefore mentioned, and there be no child or descendant of such intestate, and no brother nor sister nor descendant from them, and no father, the estate goes to the mother.

Under the same laws, the distribution of intestate personal property is determined as follows: if the intestate leave a mother and a widow, and no child nor descendant, nor father nor brother nor sister, nor child or descendant of a brother or sister, the personal property shall be divided equally between the widow and the mother. Maryland Code of 1878, arts. 47, 48.

It appeared, by the answer of her executors, that Sarah S. Preston died on July 15, 1882.

Hearing before C. Allen J., who reserved the case for the consideration of the full court.

Sarah S. Preston, entitled to the fund.

B. F. Brooks & H. G. Nichols, for the executors of Sarah S. Preston.

W. B. Durant, for the uncles and aunts.

C. A. Prince & F. Peabody, Jr., for the widow of Horatio W. Preston and her husband.

...